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Judgment
Aravind Kumar, J—This second appeal as well as cross objections are directed against judgment and decree passed by II Addl. Senior Civil Judge, Mangalore, Dakshina Kannada dated 17.08.2013 in R.A. No. 44/2013 whereunder appeal filed by defendant challenging the judgment and decree passed by 3rd Addl. Civil Judge, Mangalore partly decreeing the suit O.S. No. 158/2008 dated 15.12.2012 and directing the defendant to handover vacant possession of suit schedule property came to be allowed.
I have heard Sri. K. Chandranath Ariga, learned Advocate appearing for appellant and Sri H. Giridhar, learned Advocate appearing for respondent and perused the records.
This Court, by order dated 25.06.2014 has admitted the appeal to consider the following substantial questions of law:
"(1) Whether the judgment of the appellate Court is sustainable when there was no denial of tenancy by the defendants under the appellant?
(2) In a suit for ejectment filed by the landlord, is the question whether the tenant is monthly or yearly tenant of such a nature to deny the relief sought for in the petition?
(3) As the plaintiff had claimed that he succeeded to the property by a testatment dispossession (Will) by the lessor of the respondent, had not the respondent become the tenant of the appellant as envisaged under Section 109 of the Transfer of Property Act?
(4) Merely because in a Will there was no clear description of the property in question, it has to be held that the appellant had no right to bequeath the premises?"
In the instant case, it requires to be noticed that plaintiff has preferred RSA No. 1755/2013 being aggrieved by judgment and decree passed in R.A. No. 44/2013 as already noticed herein above and seeks for restoration of judgment and decree passed by trial Court. Before notice could be issued in this appeal, respondent had appeared by entering caveat and contested the matter. Records would also indicate that on 18.06.2014 at the request of respondent's counsel, matter was finally ordered to be listed on 25.06.2014. After having heard the learned Advocates appearing for the parties, as noticed herein supra, appeal came to be admitted on 25.06.2014 to adjudicate the substantial questions of law formulated which is already extracted herein above.
It is thereafter respondent filed cross objections under Order 41 Rule 22 CPC namely, it was filed on 21.07.2014 contending inter alia that Courts below erred in not appreciating material evidence available on record in proper perspective to arrive at a conclusion that defendant had not perfected title to the suit schedule property by adverse possession and said issue ought to have been answered by Courts below.
Records of the cross objections would indicate that Registry has raised certain objections and same reads as under:
"(1) Date of service of notice to be stated for the purpose of limitation.
(2) Date of disposal to be correctly stated at aggrieved para.
(3) Certified copy of decree of O.S. to be furnished.
(4) Any proof for having Court Fee paid before trial Court to be filed."
Sri Giridhar, learned Advocate appearing for cross objector (defendant) prays for overruling the office objections.
Having heard Sri Giridhar, learned Advocate appearing for cross objector, this Court is of the considered view that office objection Nos. (2) and (3) deserves to be over-ruled for the reason that certified copy of the decree passed in O.S. No. 158/2008 has been produced by the plaintiff in appeal RSA No. 1755/2013 and vakalathnama of the cross objector has also been filed and same is found in the records and as such said office objection Nos. (2) and (3) are over-ruled.
Insofar as office objection No. (4) relating to "proof for having paid the Court fee before trial Court" is concerned, same does not arise, inasmuch defendant has invoked Order 41 Rule 22 CPC to contend that finding recorded by the Courts below on the issue of adverse possession is erroneous and same ought to have been answered in favour of defendant. Hence, question of producing proof of having paid Court fee before trial Court does not arise and said office objection also stands over-ruled.
Office objection No. (1) relates to cross objector "not indicating the date of service of notice" which is for the purpose of computation of limitation and the same when examined in the background of Order 41 Rule 22 CPC r/w Order 41 Rule 12 CPC, it requires to be held that when technicalities are pitted against substantial justice, such technicalities will have to yield to substantial justice. It is no doubt true that Order 41 Rule 22 CPC would mandate that respondent in appeal would be entitled to file cross objection and the limitation prescribed is 30 days from the date of service of such notice. It also indicates that such cross objection will have to be filed within one month from date of service of notice of the day fixed for hearing of the appeal. Though it can be said that even as on 18.06.2014, cross objector had notice of hearing of the appeal which has been fixed as 25.06.2014, yet did not chose file cross objections would not be a ground to reject the cross objection filed in the instant case. It is an undisputed fact that cross objections had been filed by respondent on 21.07.2014. It is also not in dispute that appeal in question came to be admitted on 25.06.2014 and matter has been ordered to be listed for final hearing on 16.07.2014 as is evident from the order dated 25.06.2014. Thus, if the period of one month is computed either from 25.06.2014 or 16.07.2014, cross objections filed on 21.07.2014 would be well within time and as such, office objection No. (1) would recede to the background. Hence, office objection No. (1) stands overruled.
Perusal of cross objection would indicate that a plea had been raised by the defendant not only in his written statement but also in the reply notice dated 06.12.2007 - Ex. P-8 that defendant had perfected her title to the suit schedule property by adverse possession. In fact, trial Court had framed an issue in this regard namely, issue No. 6 and answered in the negative which also came to be affirmed by the lower appellate Court and it is this finding which defendant is seeking for being set aside by allowing the cross-objection.
It is the contention of Mr. Chandranath Ariga, learned Advocate appearing for appellant - plaintiff that said finding recorded by the Courts below is well reasoned and is a question of fact and it does not call for formulating substantial question of law.
This Court is of the considered view that in view of the fact that appeal against judgment and decree passed in R.A. No. 44/2013 having been admitted by this Court, to examine as to whether the issue of adverse possession raised by defendant has been answered by the Courts below as per Section 34 of the Specific Relief Act, 1963, this Court is of the considered view that following additional substantial question of law requires to be formulated and accordingly, it is formulated:
"Whether the Courts below were justified in rejecting the claim of defendant for adverse possession on the basis of the material evidence made available by defendant and as such, defendant would not be entitled for grant of said relief?"
Parties are referred to as per their rank in the trial Court. Facts in brief which has led to filing of this appeal as well as cross objections are as under:
"Plaintiff in O.S. No. 158/2008 prayed for a judgment and decree to direct the defendant to vacate and surrender vacant possession of plaint schedule building to the plaintiff; to pay arrears of rent @ Rs. 1,200/- per month from 01.12.2006 to 30.11.2007; and, to direct the defendant to pay mesne profits @ Rs. 5,000/- per month from 01.12.2007 till the date of decree and handing over possession of the suit building. It was contended by the plaintiff that he is the absolute owner of residential building bearing No. 6-152(1) morefully described in the plaint and hereinafter referred to as suit schedule property and he had acquired title to the same under a registered Will dated 31.10.1998 executed by Smt. Ratnavati Hegde who after the death of her mother Smt. Mayre Hengsu succeeded to the suit property and plaintiff having looked after Smt. Ratnavati Hegde who was being issueless, had executed a Will and on her death on 08.09.2005 plaintiff became owner of the suit schedule property by testamentary succession. It was contended that defendant's husband Sri Suresh Shetty was the tenant under Smt. Ratnavathi Hegde on monthly rent of Rs. 1,000/- per month and on the death of said Sri Suresh Shetty, defendant approached the plaintiff and requested to allow her to continue in the plaint schedule property as a monthly tenant on fresh lease terms and as such, plaintiff had allowed the defendant to stay in the schedule premises on humanitarian ground on payment of rent of Rs. 1,200/- per month."
It was further contended that defendant had accepted the Will executed by Smt. Ratnavathi Hegde and postponed to pay rent on one pretext or the other and plaintiff in order to store his agricultural equipments in the suit schedule building, required the said building for his personal use and despite making requests to defendant to handover vacant possession of the suit schedule building, same was not surrendered and as such, plaintiff got issued notice on 09.11.2007 whereunder tenancy was terminated with effect from 13.11.2007 and said notice was duly served on the defendant and it was also replied on 06.12.2007 denying the claim of plaintiff. It is on account of such denial, plaintiff contended that defendant had become a trespasser after termination of the tenancy from 13.11.2007 and as such, claiming arrears of rent and future mesne profits, suit in question came to be filed.
On service of suit summons, defendant appeared and filed written statement denying the averments made in the plaint. It was contended that plaintiff is not the absolute owner of the residential building i.e., plaint schedule property. Execution of the Will and the manner of plaintiff having succeeded to suit schedule property by testamentary succession was also denied. Other averments made in the plaint was denied except to the extent expressly admitted in the written statement. It was specifically contended by the defendant that after her marriage, she has been residing in the said house which is located in an area measuring 0.10 acres along with her family members and said property originally belonged to Smt. Mayre Hengsu which measured 1 acre 13 cents out of which defendant's predecessor had been in actual possession and enjoyment of 10 cents of land and they have constructed a house by obtaining necessary permission from the statutory authority as indicated in the plaint schedule. It was also contended that both Smt. Mayre Hengsu and her daughter Smt. Ratnavathi Hegde very well knew about the hostile possession and enjoyment of said land by the defendant and her predecessors and as such, defendants have perfected their right, title and interest over the suit schedule property by way of adverse possession. On this ground, defendant sought for dismissal of the suit.
On the basis of the pleadings of parties, trial Court framed following issues:
"(1) Does the plaintiff prove that he is the absolute owner of the suit schedule property by virtue of a registered Will dated 31.10.1998?
(2) Whether the plaintiff proves that, the defendant is a monthly tenant under him in respect of plaint schedule premises?
(3) Does the plaintiff prove that defendant is in arrears of rent?
(4) Whether the plaintiff is entitled for the arrears of rent? If so, for what period and at what rate?
(5) Whether the plaintiff is entitled for mesne profits? If so, for what period and at what rate?
(6) Does the defendant prove that she has perfected her right, title and interest over the suit schedule property by way of adverse possession?
(7) Whether the plaintiff is entitled for the reliefs as prayed for?
(8) What order or decree?
Addl. Issue:
(1) Whether plaintiff proves that the alleged tenancy of the defendant has been terminated as per notice dated 9.11.2007 as pleaded in the plaint Para No. 9?"
Issue Nos. (1), (2) and additional issue No. (1) were answered in the affirmative. Issue No. (7) was partially answered in the affirmative and issue Nos. (3), (4), (5) & (6) were answered in the negative. Suit came to be decreed and defendant was directed to handover vacant possession of suit schedule property within three months from the date of the decree. Being aggrieved by the same, defendant filed an appeal in R.A. No. 44/2013. First Appellate Court after securing the records of the trial Court and after considering the arguments advanced by the respective learned Advocates, formulated the following points for its determination.
"(1) Whether the plaintiff proved before the trial Court that the defendant is a monthly tenant under the plaintiff with respect to the suit property and tenancy is properly terminated as provided under law?
(2) Whether the Order passed by the trial Court requires interference of this Court?
(3) What order or decree?"
On re-appreciation of evidence, first appellate Court allowed the appeal and consequently, set aside the judgment and decree passed in O.S. No. 158/2008 dated 15.12.2012 and thereby dismissed the suit filed by the plaintiff. Hence, unsuccessful plaintiff has filed this second appeal.
As already noticed herein above, defendant being aggrieved by the findings recorded by trial Court with regard to issue No. 6 has preferred cross objections No. 06/2014 and said cross objections has also been admitted to adjudicate the additional substantial questions of law. Accordingly, they are adjudicated herein below and before proceeding to adjudicate the said substantial questions of law, it would be apt to note the findings recorded by the Courts below:
FINDINGS RECORDED BY THE TRIAL COURT:
While answering issue Nos. (1) and (2) which relates to plaintiff proving his title and also tenancy of defendant, Court had noticed that Will propounded by plaintiff dated 31.10.1998 which had been executed by Smt. Ratnavathi Hegde was duly proved since the attestor of the Will has been examined and there is no suspicious circumstances to dispute the execution of said Will. Hence, execution of the Will came to be held as proved. It was also held that plaintiff had proved his tenancy. However, while answering issue No. (6) which relates to the claim of defendant for having perfected her title to the suit schedule property by way of adverse possession, it came to be held that on account of inconsistency in the pleadings and the necessary ingredients to claim adverse possession being not present, defendant is not entitled for the said relief and accordingly, it has answered issue No. 6 in the negative i.e., against defendant and plea of adverse possession came to be rejected.
While considering the claim of plaintiff for possession of the suit schedule property, it has been held that on account of issue Nos. 1 and 2 having been proved by the plaintiff, he would be entitled for possession of suit schedule property and also on account of the admission of defendant in the reply notice - Ex. P-8 with regard to Smt. Mayre Hengsu i.e., Smt. Ratnavathi Hegde's mother being the erstwhile owner of the suit property. Hence, trial Court has decreed the suit partly by directing the defendant to deliver vacant possession of the suit schedule property within three months from the date of judgment and decree.
FINDINGS RECORDED BY FIRST APPELLATE COURT:
First appellate Court has held that recitals in the Will - Ex. P-1 does not indicate that suit schedule property has been bequeathed by the testatrix in favour of plaintiff under the said Will dated 13.10.1998 -Ex. P-1 and has also held that resolution of Gurupura Gram Panchayat - Ex. P-4 discloses that in a portion of the suit schedule property, defendant's husband was residing and in order to obtain separate door number to the said property, resolution was passed as per Ex. P-4 and as such defendants have been residing in suit schedule property in their own right. It has also been held that it cannot be presumed that suit property is situated in the Sy. No. alleged to have been purchased by Smt. Mayre Hengsu under Ex. P-13 or in other words, suit property being situated in one of the Sy. Nos. indicated in the Will dated 31.10.1998 - Ex. P-1. It has been further held that there was no material produced by plaintiff to establish relationship of landlord and tenant and suit in question not being a suit for declaration relief sought for by plaintiff could not have been granted. On this amongst other grounds as indicated in its judgment, first appellate Court has reversed the findings of the trial Court and dismissed the suit in question.
First appellate Court while reversing the findings recorded by the trial Court on issue Nos. 1 and 2 and examining the plea of defendant with regard to issue No. 6 which related to adverse possession, has held that material evidence produced by the defendant is not sufficient enough to arrive at a conclusion that defendants had perfected their title to the suit schedule property by way of adverse possession.
RE: SUBSTANTIAL QUESTION OF LAW NOS.(1) AND (2):
Since any finding recorded by this Court on either of this question would have bearing on the other, this Court is of the considered view that it would be apt and appropriate to take up these two (2) questions together for adjudication and answering. Accordingly, they are taken up.
Plaintiff in the instant case is claiming title to the suit property by virtue of testamentary succession namely, Will dated 31.10.1998 executed by Smt. Ratnavathi Hegde who undisputedly expired on 08.09.2005. On her death, plaintiff contended that he has succeeded to the suit schedule property by virtue of testamentary succession. The evidence on record would indicate that Smt. Mayre Hengsu purchased an extent of 2 acres 3 cents in Sy. No. 3/9B under a registered sale deed dated 09.08.1963 which document has been marked as Ex. P-13. Subsequent to the said purchase, she is said to have sold portion of the property which is not seriously disputed by the defendant also. Vendors of Smt. Mayre Hengsu are Sri Babu Shetty, Sri Padmanabha Shetty and Smt. Antakke i.e., mother of Sri Babu Shetty and Sri Padmanabha Shetty. Present defendant in the suit Smt. Jayanthi Shetty is none other than daughter-in-law of said Sri Padmanabha Shetty. Smt. Jayanthi Shetty - defendant herein had married Sri Suresh Shetty i.e., son of Sri Padmanabha Shetty. There is no serious dispute with regard to Ex. P-13.
Said Smt. Mayre Hengsu had one daughter by name Smt. Ratnavathi Hegde and on the demise of Smt. Mayre Hengsu, said Smt. Ratnavathi Hegde succeeded to her estate by virtue of she being Class - I legal heir of her mother Smt. Mayre Hengsu. She claimed to be in possession and enjoyment of suit schedule property. Records would also indicate that Sri Babu Shetty had filed Form No. 7 before the land Tribunal, Mangalore claiming occupancy rights in respect of suit schedule property including the land abutting thereto. Said Form No. 7 came to be adjudicated by Land Tribunal and by order dated 28.09.1981 occupancy rights was granted in favour of Sri M. Babu Shetty. Above said Smt. Ratnavathi Hegde questioned or challenged said order of the land Tribunal before this Court in W.P. No. 10979/1995 and this Court after considering rival contentions, by order dated 26.11.2002 allowed the writ petition and quashed the order passed by the land Tribunal. Order passed by this Court in Writ Petition No. 10979/1995 came to be produced by the plaintiff before trial Court in the suit in question and it was marked as Ex. P-5. A perusal of the said order would clearly indicate that claim of Sri Babu Shetty had been rejected by this Court. It came to be held by this Court as under:
"2. From the order of the Land Tribunal and the other material it is seen the contesting respondent is residing in a house constructed on the land in respect of which he is asking for occupancy rights. The Chairman of the Land Tribunal has observed that the contesting respondent has not produced any material to show that he has cultivating the land since the building is existing on the land in question. If that is so, the building which is existing on the land measuring 15 cents in Sy. No. 39/5 cannot be considered as an agricultural land for the purpose of granting occupancy rights. Therefore, the impugned order is liable to be quashed."
Recording the above finding, order of Land Tribunal came to be quashed. It was noticed by this Court that Survey number mentioned in the said order related to 39/3 and 39/5 and in order to ascertain as to what was the subject matter of consideration before land Tribunal, not only the records of writ petition was ordered to be put up but also learned Advocates appearing for the parties were called upon to produce Form No. 7 which is available with them to clear the doubt.
Sri Chandranath Ariga, learned Advocate appearing for the plaintiff has made available a copy of Form No. 7 along with a memo and same is placed on record which would clearly indicate that what was claimed by the applicant for grant of occupancy certificate was 1 acre of land together with one residential building situated in Sy. No. 3/9B1. Sri Giridhar, learned Advocate appearing for defendant who has not seriously disputed this fact contended that dehors filing of such an application for grant of occupancy rights by a member of the family would not defeat the right of other members of the family who are in possession and enjoyment of suit schedule property to claim their right and assert their possession over the same. In that view of the matter, he would submit that filing of such application, passing of order by the Tribunal or setting aside of said order by this Court would have no bearing on the claim of the present defendant.
As already noticed herein above, plaintiffs predecessor in title was one Smt. Mayre Hengsu. She had only daughter by name Smt. Ratnavathi Hegde and on the demise of Smt. Mayre Hengsu, her daughter Smt. Ratnavathi Hegde succeeded to her estate. Said Smt. Ratnavathi Hegde asserted her title to the suit property and was prosecuting her claim before various forums. Form No. 7 filed by Sri Babu Shetty, a copy of which is produced along with Memo would indicate that name of the landlord has been shown as Smt. Mayre Hengsu i.e., mother of Smt. Ratnavathi Hegde. Said Sri Babu Shetty as already noticed herein above, is brother of Sri Padmanabha Shetty and Sri Padmanabha Shetty is none other than father in law of defendant herein.
Defendant herein is claiming her possession to the suit schedule property by virtue of having got married to Sri Suresh Shetty i.e., son of Sri. Padmanabha Shetty. Thus, it can be noticed that right to suit schedule property which is claimed by defendant is through her husband late Sri Suresh Shetty and her father-in-law Sri Padmanabha Shetty. At no point of time, Sri Padmanabha Shetty had asserted his right, title or interest over suit schedule property. On the other hand, his brother Sri Babu Shetty i.e., brother of defendants'' father-in-law had contended that he is the tenant of land as well as suit schedule building under its owner Smt. Mayre Hengsu and same came to be accepted by the Land Tribunal and negatived by this Court as per order dated 26.11.2002 - Ex. P-5. Said order has reached finality. At no point of time, either Sri Padmanabha Shetty or his mother Smt. Antakke had prosecuted their claim over suit schedule property or the land in question. It was Sri Babu Shetty alone who was prosecuting his claim contended that it was tenanted land. Thus, defendant cannot have any better title than what said Sri Babu Shetty possessed.
That apart, under Ex. P-13, undisputedly father-in-law of defendant i.e., Sri Padmanabha Shety, Sri Babu Shetty and their mother Smt. Antakke have sold the entire land bearing Sy. No. 3/9B measuring 2 acres 3 cents to Smt. Mayre Hengsu on 09.08.1963 and she has acted upon said sale deed and sold a portion of the property she purchased and had retained remaining portion including suit schedule property. Thus, title of Smt. Mayre Hengsu cannot be under cloud or dispute. In fact, defendant in his reply notice dated 06.12.2007 -Ex. P-8 at paragraph 3 has categorically admitted that land bearing Sy. No. 3/9B(p) measuring 0.10 acre land together with house bearing No. 6/152 comprising in the said survey number originally belonged to one Smt. Mayre Hengsu. It is also admitted by defendant herself that total extent of the suit property was measuring 1 acre 13 cents. Thus, defendant cannot raise any plea contrary to admission made in the reply notice Ex. P-8 which fact had also been reiterated by her in her examination-in-chief. Thus, when one of the family members of the defendant Sri Babu Shetty had admitted that he is tenant of the property in question under Smt. Mayre Hengsu and was paying rents, there cannot be any better claim that can be put forward by the defendant who is daughter in law of Sri Padmanbha Shetty i.e., brother of Sri Babu Shetty. It is because of this precise reason, trial Court had rightly held that plaintiff after having acquired title to the suit schedule property under the Will dated 31.10.1998 executed by daughter of Smt. Maria Hengsu namely, Smt. Ratnavathi Hegde had contended that tenancy of defendant was continued. In other words, it was pleaded by her that it was oral tenancy and denied by the defendant. In view of the documentary evidence available on record namely, Ex. P-5 - order passed by a co-ordinate Bench of this Court in W.P. No. 10979/1995 disposed of on 26.11.2002 rejecting the claim of Sri Babu Shetty that he cannot claim occupancy rights in respect of the said land and building, this Court is of the considered view that finding recorded by the trial Court with regard to there being relationship of landlord and tenant had continued on plaintiff succeeding to the suit schedule property by testamentary succession and said finding of trial Court was a finding of fact and it ought not to have been reversed by the appellate authority as there was no other contrary material available before it. Hence, substantial questions of law Nos. (1) and (2) formulated herein above are answered in favour of plaintiff and against defendant.
RE: SUBSTANTIAL QUESTION OF LAW NO.(3):
Major portion of the finding recorded by answering substantial questions of law Nos. (1) and (2) would also cover substantial question of law No. (3). However, for the sake of convenience, it is adjudicated by assigning additional reasons indicated herein below:
"Under Section 109 of Transfer of Property Act, 1882 right, title and interest in a immovable property stands transferred by operation of law in favour of the transferee where such transfer takes place in the absence of a contract to the contrary and such transferee would possess all the rights, and if the lessor so elects be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it. As already noticed herein above, by virtue of the Will having been executed by Smt. Ratnavathi Hegde on 31.10.1988 which came to be marked as Ex. P-1 and on her demise on 08.09.2005 Will became operational and as such, plaintiff had acquired title to the property. This, has already noticed herein above while answering substantial questions of law Nos. (1) and (2) namely, that originally Sri Padmanabha Shetty, Sri Babu Shetty and Smt. Antakke were the owners of the property and they had conveyed right, title and interest of entire land in Sy. No. 3/9 B measuring 2 acres 3 cents including suit schedule property to plaintiffs predecessor in title namely, Smt. Mayre Hengsu under sale deed dated 09.08.1963 - Ex. P-13 and her only daughter Smt. Ratnavathi Hegde had succeeded to said property on the demise of Smt. Mayre Hengsu and as such, plaintiff acquired title to the suit schedule property. In view of the fact that one of the vendors namely, Sri Babu Shetty having claimed tenancy rights not only in respect of land but also building located therein, other members of the family cannot be heard to contend that they possessed any better title than what either of them possessed or Sri Babu Shetty possessed. As such, it has to be held that by virtue of testamentary disposition, defendant had become tenant of the plaintiff and under Section 109 of the Transfer of Property Act, 1882 plaintiff acquired the right of the transferor i.e., Smt. Rathnavathi Hegde. Accordingly, substantial question of law No. (3) is answered in favour of plaintiff."
RE: SUBSTANTIAL QUESTION OF LAW NO.(4):
Main factor which had swayed in the mind of the first appellate Court to reverse the finding of trial Court was, description of suit schedule property as indicated in the plaint is not to be found in the Will dated 31.10.1998 - Ex. P-1 propounded by plaintiff and this creates a doubt of suit schedule property having been bequeathed by Smt. Rathnavathi Hegde in favour of plaintiff. This is an erroneous finding contrary to the pleadings and evidence on record for the following reasons:
"(i) Perusal of Ex. P-1 would indicate that there is residential house constructed in Schedule "B" property and the recital to the said effect in Ex. P-1 reads as under:
(ii) In the written statement filed by defendant, it has been contended by her that she is residing in the house bearing No. 6/152 comprised in Sy. No. 3/9B(p). It is in paragraph 7 that her predecessors were in actual possession and enjoyment of 10 cents of land and they built one house bearing door No. 6/152.
(iii) D.W.1 in her examination-in- chief at paragraph 8 has admitted that suit schedule building is comprised in Sy. No. 3/9B(p). That apart, it has never been the case of defendant that suit schedule building is not located in Sy. No. 3/9B(p), but on the other hand, it has been her specific assertion that suit schedule building is situated in Sy. No. 3/9B(p)."
Hence, contention of the defendant before this Court that for want of clear details in the Will indicating suit schedule property had been bequeathed to him under Ex. P.1 and as such he would disentitle to the relief sought for in the suit cannot be accepted. Hence, substantial question of law No. (4) is answered by holding that appellant had acquired title to the suit schedule property by virtue of the Will - Ex. P-1 and mere non-mentioning of the description of suit schedule house in Schedule "B" with exactitude does not disentitle the plaintiff for the relief sought for in the plaint.
RE: ADDITIONAL SUBSTANTIAL QUESTION OF LAW:
Defendant has contended before trial Court, lower appellate Court as well as before this Court that she had perfected her title to the suit schedule property by way of adverse possession and issue No. 6 ought to have been answered in her favour. In support of the said claim, defendant has very heavily relied upon Exs. P-3 and P-4 apart from other documents. Ex. P-3 is a certificate dated 09.10.1997 issued by Gurupur Gram Panchayat. A perusal of said document would indicate that building bearing No. 6-152 is entered in the disputed Register for the year 1992-93 in the name of Sri Padmanabha Shetty and the building bearing No. 6-152(1) is in the name of Sri Suresh Shetty, s/o Sri Vittal Shetty for the year 2003-04. In order to substantiate her claim, defendant got examined the Secretary of said Gurupur Village Panchayat as D.W.2. Through him, defendant got marked the certificate dated 28.08.2007 as Ex. D-31. A perusal of said document would indicate that suit schedule building was entered in the disputed Register in the name of Sri Babu Shetty for the year 1981-82 and the consolidated number came to be issued in the name of Sri Padmanabha Shetty for the year 1992-93. Claim of Sri Babu Shetty having been negatived by this Court and Sri Padmanabha Shetty having never claimed any right over the property in question during his life time, his legal heirs including defendant cannot raise a plea which was not available either to Sri Padmanabha Shetty or Sri Babu Shetty.
Yet another intriguing factor which requires to be noticed at this juncture itself is one of the document produced by the defendant namely, General receipt dated 28.08.2007 and marked as Ex. D-1 came into existence on the same day on which Ex. D-31 came into existence. Through Ex. D-31 defendant has made an attempt to depict as though from the year 1992-93 they have been in possession and enjoyment of the suit schedule building, but Ex. D-1 receipt would indicate that tax for the years 1992-93 to 31.03.2008 was paid on 28.08.2007 i.e., just two months prior to the legal notice which came to be issued by the plaintiff terminating the tenancy as per Ex. P-6 (09.11.2007) and as such plaintiffs plea in the plaint that he was requesting the defendant to quit and hand over possession is in the proximity of truth. Electricity bills Exs. D-16 & D-17 would indicate that there was no recording of the meter in the years 2002 and 2004 and the entry made by the meter reader reads as "door locked". For the plea of adverse possession being taken up, ingredients which requires to be satisfied are: (1) person so claiming has to admit title of the adversary; (2) has to establish being in possession to the knowledge of the true owner; and continuously for 12 years preceding such claim. In a nutshell, it can be said that until and unless the plea is proved by having animus possidendi, such plea cannot stand the test of law and such dispute at the threshold has to be rejected. Learned counsel appearing for the defendant has relied upon the following two judgments of Hon'ble Apex Court namely, :
"(i) Annakili Vs. A. Vedanayagam and Others, AIR 2008 SC 346 : (2008) 1 CTC 329 : (2007) 12 JT 383 : (2007) 11 SCR 517 : (2007) AIRSCW 6892 : (2007) 7 Supreme 342
(ii) T. Anjanappa and Others Vs. Somalingappa and Another, (2006) 102 CLT 683 : (2006) 5 CTC 378 : (2006) 8 JT 382 : (2006) 8 SCALE 624 : (2006) 7 SCC 570 : (2006) 5 SCR 200 Supp "
whereunder it has been held that person claiming adverse possession has to show that such person and his/her predecessor had been in possession of the property on the basis of a hostile title and as a result whereof, the title of the respondent - plaintiff had stood extinguished.
Keeping principle laid down by Hon'ble Apex Court in mind, when the facts on hand are examined, it would not detain this Court too long to reject the contention of defendant inasmuch as, the plea of the defendant on adverse possession commencing from the reply notice Ex. P-8 till the date of her tendering evidence has been consistently inconsistent. On the one hand, defendant denies title of the plaintiff, for instance, in paragraph 1 of the reply notice dated 06.12.2007 -Ex. P-8 and paragraph 2 of the written statement, but at the same time, asserts her title in paragraph 7 of the written statement. In fact, D.W.1 in her cross examination dated 08.09.2010 has stated as under:
(suit schedule property did not belong to either Mayre Hengsu or Rathnavathi Hegde. 5 years back Rathnavathi Hegde expired.)"
Defendant claims to have been in possession and enjoyment of suit schedule property after getting married to Sri Suresh Shetty s/o Sri Padmanabha Shetty and she claims to be residing along with other family members. In her cross examination dated 08.09.2010 she has stated that suit schedule building was constructed by her father in law. In her own words, she has stated as under:
(suit schedule building was constructed by my father-in-law Padmanabha Shetty. I do not know which year it was constructed.)"
This statement runs contrary to the documentary evidence relied upon by defendant herself namely, certificate dated 28.08.2007 - Ex. D-31 issued by Gurupura Gram Panchayat which indicates that building bearing No. 6-19 and 6-53 (before being issued with consolidated number 6-152) was standing in the name of Sri Babu Shetty even as on 1973. Apart from this inconsistency in evidence and pleadings, trial Court and lower appellate Court have succinctly discussed the inconsistencies at large to deny the plea of defendant that she has perfected her title to the suit schedule property by way of adverse possession. Said finding is arrived at by the Courts below based on proper appreciation of evidence and same is neither contrary to the material available on record nor there has been improper appreciation of available evidence. There is also no infirmity committed by the Court below in not delving upon the available evidence so as to hold that there is perversity in the judgment. Hence, this Court is of the considered view that additional substantial question of law deserves to be answered against defendant by affirming the finding recorded by the Courts below.
For the reasons aforestated, I proceed to pass the following:
ORDER
"1) RSA No. 1755/2013 is hereby allowed by answering substantial questions of law in favour of the appellant as discussed herein above.
2) Judgment and decree passed by II Addl. Senior Civil Judge, Mangalore, D.K. in R.A. No. 44/2013 dated 17.08.2013 is hereby set aside to the extent of finding recorded against appellant-plaintiff.
3) Judgment and decree passed by the III Addl. Civil Judge, Mangalore in O.S. No. 158/2008 dated 15.12.2012 is restored.
4) RSA CROB No. 6/2014 stands dismissed by answering Substantial Question of Law against defendant.
5) No order as to costs."